Ishwari and Another (In Jail) vs State of U.P.

This criminal appeal by accused Ishwari and Manglee has been filed against the judgment and order dated 5.12.1981, passed by Sri K. S. Rakhra, the then Additional Sessions Judge, Orai in S.T. No. 112 of 1981 whereby he convicted Manglee u/s 304, Part II, I.P.C. and sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000. Accused Ishwari was convicted u/s 304, Part II read with Section 34, I.P.C. and sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000. In default of payment of fine they were ordered to undergo further rigorous imprisonment for a period of six months.

Briefly stated, the prosecution story is as under:

P.W. 1 Kadore, son of Baljoo, a resident of village Damras, police station Churkhi, lodged an F.I.R. at police station Churkhi on 19.7.1980 at 4.45 p.m. u/s 304, I.P.C. against Manglee, Ishwari and Jagdish. The informant alleged that there is a narrow lane between houses of Dhanpat and accused Manglee through which Manglee and Ishwari were trying to flow water forcibly. The drain was being dug by the accused adjacent to the wall of the house of Dhanpat. The informant''s brother Dhanpat stopped the flow of water by filling earth. Accused Manglee and Ishwari removed the earth forcibly and with a view to teach a lesson to Dhanpat, they rushed home to bring lathies. In the meantime, Ram Singh, son of Dhanpat arrived there and he was thrown out in the same drain by Jagdish. On the exhortation of Jagdish, Manglee and Ishwari gave lathi blows on the head of Dhanpat. The informant his nephew Ram Singh and brother Chaturi, Dhani Ram and Santosh who had arrived there saw the incident and challenged the assailants and then they took to their heels. This incident took place on 18.7.1980 at about 5.00 p.m.

The informant got a report written by one Gajendra Singh and reached the police station on 19.7.1980. On account of heavy rains and non-availability of the conveyance, the informant arranged a tractor along with trolley in the morning of 19.7.1980. On the way near bus station Damras, Dhanpat succumbed to his injuries at about 9.00 a.m. The informant left the dead body in the supervision of members of the family and village chaukidar.

After registration of the case at the police station at Crime No. 90, investigation was taken up by P.W. 4 S.I. Raisul Haque. He took up investigation, interrogated the informant and left the police station for the place of occurrence. He prepared inquest report and other papers and sent the dead body to Orai for post-mortem examination. Next morning, he inspected the scene of incident and prepared site plan.

P.W. 7 Dr. R. C. Singh, the then Medical Officer District Jail, Orai, conducted autopsy on the dead body of Dhanpat on 20.7.1980 at 4.00 p.m. According to the doctor, the deceased was about 50 years old and had died about two days prior to examination. Dr. Singh found following ante-mortem injuries:

(1) Lacerated wound size 5 cm. ? 1 cm. ? scalp deep, 7 cm. above over left side head from medial end left eyebrow. Vertical.

(2) Abrasion size 1 cm. ? 5 cm. ? 7 cm. below right nipple.

The membranes of the brain were congested and blood was present between cranial cavity and membrane. In the opinion of the doctor, death was caused due to coma, shock and haemorrhage resulting from head injury.

After transfer of S.I. Raisul Haque, P.W. 6 S.I. B. S. Chauhan took up investigation and interrogated Ram Singh, Dhani Ram and others. He interrogated accused also and after completing investigation submitted charge sheet.

After committal of the case, all the three accused were charged u/s 304, Part II read with Section 34, I.P.C. They pleaded not guilty and claimed to be tried.

During trial, the prosecution examined seven witnesses in all. They are P.W. 1 Kadore, who is the informant and brother of the deceased. He claimed himself to be an eye-witness, P.W. 2 Ram Singh, son of the deceased is also said to be an eye-witness, P.W. 3 Dhani Ram, who is named in the F.I.R. as an eye-witness, P.W. 4 S.I. Raisul Haque is the I.O. of the case, P.W. 5 H. C. Baladin, who prepared chik report and made entry in the G.D., P.W. 6 S.I. B. S. Chauhan is the second I.O. of the case, P.W. 7 Dr. R. C. Singh, is the Medical Officer, who had conducted post-mortem examination on the dead body of Dhanpat on 20.7.1980.

Accused Manglee and Ishwari totally denied the accusation levelled by the prosecution and pleaded their false implication on account of enmity. According to Manglee, Dhanpat and others did not allow him to flow the dirty water. Ultimately members of the panchayat settled the dispute and got a drain constructed by Dhanpat adjacent to the wall of the house of accused. Ram Singh was assaulting wife of the accused Manglee. When Manglee tried to intervene and protect her, Ram Singh gave a blow to his father Dhanpat.

Accused Ishwari pleaded alibi and stated that he had sold his land (Ghera) to Manglee. The informant was interested in purchasing the land (Ghera) and as such, he was annoyed with him.

After appraisal and close scrutiny of the entire evidence on record, learned trial Judge concluded that Manglee and Ishwari committed culpable homicide not amounting to murder and accordingly, they were convicted u/s 304, Part II, I.P.C. and sentenced, as mentioned above. Accused Jagdish was not found guilty and acquitted, of the charge. Hence this appeal.

I have heard learned Counsel for the Appellants, learned A.G.A. and perused the record carefully.

Learned Counsel for the Appellants has urged vehemently that inordinate delay took place in lodging the F.I.R. at police station Churkhi by the informant and as such the possibility of false implication of the Appellants cannot be ruled out. The judgment under appeal was further assailed on the ground that Ishwari did not participate in the offence and gave no lathi blow to the deceased and as such, the court below erred in convicting him. It was also urged that P.W. 3 Dhani Ram, who is said to be an eye-witness, was not declared hostile by the prosecution and he gave out in very clear words that Ishwari gave no lathi blow to the deceased. Therefore, there was no justification at all to convict Ishwari also with the aid of Section 34, I.P.C. It was also contended that Dr. R. C. Singh, who conducted autopsy found only one lacerated wound over left side of the head and one abrasion below right nipple. It means that deceased was given a single lathi blow on the head. Consequently, the appeal is liable to be allowed and both the Appellants are entitled to get benefit of doubt.

On the other hand, learned State counsel supported the judgment of the court below and contended that learned Judge rightly found both the Appellants guilty and appeal is liable to be dismissed.

After considering the submissions made on behalf of the parties and the entire evidence on record also, I am of the opinion that this appeal has merit and it must succeed partly.

According to the informant, the incident in question took place at about 5.00 p.m. on 18.7.1980. Dhanpat, brother of the informant, succumbed to the injuries next day at about 9.00 a.m. The police station is situate at a distance of ten miles from the village in question. The F.I.R. was lodged on 19.7.1980 at 6.45 p.m. Prima facie it appears that F.I.R. was lodged after about 25 hours of the incident and delay took place. However, after going through the evidence on record and written report also, I find and hold that no delay took place in reporting the incident to the police and the delay was satisfactorily explained by the prosecution. The incident took place in the month of July. Therefore, the statement of the informant that it was raining and he could not arrange any conveyance on 18.7.1980 cannot be disbelieved. The members of the family of the deceased including the informant must have been disturbed in the morning of 19.7.1980 on account of death of Dhanpat. In this view of the matter, I hold that learned Judge rightly held that the delay was explained satisfactorily by the prosecution and on this score the prosecution case cannot be thrown out.

All the prosecution witnesses, deceased and the accused were well known to each other and they all lived in one and in the same village. There is sufficient and reliable evidence on record to the effect that Manglee was trying to flow water through a drain quite adjacent to the house of the deceased. Dhanpat tried to prevent Manglee by filling earth in the drain. This act of the deceased was not liked by Manglee and others. He brought a lathi and gave a lathi blow on the head of the deceased, which proved fatal.

P.W. 1 Kadore testified that Ishwari too brought a lathi from his house and gave a lathi blow. In cross-examination also he gave out that first of all Manglee gave a lathi blow on the head and Ishwari welded his lathi immediately thereafter. This statement of the witness does not find support from medical evidence on record. It is noteworthy that the deceased could not be taken to any hospital for medical examination of his injuries.

P.W. 2 Ram Singh, who is son of the deceased and an eye-witness disclosed in very clear words that Manglee was digging a drain and his father objected and was filling earth in the drain. He was pushed out by Jagdish and Manglee who arrived there with a lathi gave a blow on the head of his father. He further stated that Jagdish stopped others from assaulting. He stated in very clear words that he did not see Ishwari assaulting his father. He was not declared hostile. In cross-examination also Ram Singh deposed that he sustained no injury during the course of incident. According to him when Manglee assaulted his father with lathi. Ishwari was present there. The witnesses including Chaturi, Santosh, Kadore and Ramayee arrived there and all forbade the assailants.

P.W. 3 Dhani Ram further clarified that he too arrived on the spot after hearing altercation and saw that Jagdish was intervening and Ram Singh fell down. He disclosed in clear words that Manglee gave a lathi blow on the head of Dhanpat and he fell down. According to him, no second lathi blow was given to Dhanpat. In cross-examination also, the witness reiterated his earlier statement.

In view of the foregoing discussion of the evidence on record, it is crystal clear that Ishwari did not share common intention and there was no prior meeting between Manglee and Ishwari. P.W. 2 Ram Singh and P.W. 3 Dhani Ram gave out in clear word that Ishwari caused no injury to Dhanpat. The testimony of Kadore does not find support from the statement of Dr. R. C. Singh, who found only one lacerated wound on the head. I, therefore, hold that the learned Judge was not justified in convicting Ishwari also for committing the offence punishable u/s 304, Part II read with Section 34 of the Penal Code and he, in my opinion, deserves acquittal. So far as the conviction of Manglee is concerned, I find no illegality in the impugned judgment and his conviction is sustainable. Further, I find no valid ground to reduce the sentence imposed by the court below.

In the result, the appeal partly succeeds. The conviction of Appellant Ishwari u/s 304, Part II read with Section 34, I.P.C. and the sentence thereunder are hereby set aside and he is acquitted. He is on bail. He need not surrender.

The conviction and sentence recorded against Manglee are hereby maintained. He is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence. He is however, allowed two months'' time to deposit the fine in the court below.

A copy of the judgment shall be sent to the Court concerned for compliance within six weeks. Compliance report be sent within two months.